The employee was a Yard Equipment Operator for Kraft Heinz. Unbeknownst to Kraft Heinz, the employee obtained a medical marijuana card for various medical issues. In August 2016, the employee alerted Kraft Heinz to unsafe conditions in the railroad yard. That same day, the employee was operating a shuttle wagon on the railroad tracks when it derailed. As you might expect, Kraft Heinz requested the employee undergo a drug test, which revealed the presence of marijuana. The employee informed the medical review officer he had a valid medical marijuana card, but Kraft Heinz terminated the employee in late August 2016.

Of course, marijuana remains an illegal Schedule I substance under the federal Controlled Substances Act (“CSA”), so Kraft Heinz argued that federal law is in conflict with the Delaware Medical Marijuana Law (“DMMA”). Expressly following in the footsteps of courts in Connecticut and Rhode Island, the court concluded that because the CSA does not make it illegal to employ someone who uses marijuana nor does it regulate employment matters, the state law (DMMA, in this case) and CSA can both apply.

Next, the court considered whether the DMMA gave an employee the ability to bring a lawsuit even though the DMMA was silent on this point. The court noted that Delaware is one of only nine states whose medical marijuana law expressly prohibits the failure to hire, discipline or discharge an employee who uses medical marijuana outside of work and tests positive on a drug test. (The other states with such laws are Connecticut, Rhode Island, Arizona, Illinois, Maine, Nevada, New York, and Minnesota.)

Relying again on the Rhode Island decision, Callaghan v. Darlington Fabrics Corp., the court concluded that because the DMMA has a specific anti-discrimination provision, the Delaware legislature must have intended to permit the employee to sue under the DMMA.

What the ruling means is the employee will be allowed to move forward with discrimination claims arising out of Delaware’s medical marijuana statute. Up until several years ago, courts had generally found that employers were not required to accommodate medical marijuana use under state law because marijuana is illegal under federal law. This position, however, is no longer necessarily the case. Employers with operations in Delaware and other states with marijuana laws should carefully consider the language of these laws and whether they may impact employment.

]]>https://www.laboremploymentreport.com/2019/02/07/another-state-finds-no-federal-preemption-of-its-medical-marijuana-law/feed/0Oh, the Weather Outside is Frightful (I think I Need a Sick Day)!!https://www.laboremploymentreport.com/2019/01/03/oh-the-weather-outside-is-frightful-i-think-i-need-a-sick-day/
https://www.laboremploymentreport.com/2019/01/03/oh-the-weather-outside-is-frightful-i-think-i-need-a-sick-day/#respondThu, 03 Jan 2019 13:39:06 +0000https://www.laboremploymentreport.com/?p=3163Whether you are looking out your window at the wonder of snow or trying to prognosticate when it will hit, one thing is for sure. If you are in a state with mandatory sick leave, employees may be invoking their right to no-questions-asked leave when you otherwise prohibit any excuses. Such “no excuse” policies are common during snow events at businesses that must provide service – hospitals, property management companies, no-stop assembly lines. Think patients to be cared for, sidewalks to be cleared, machines that will seize without humans.

Why invoke statutory sick leave? Maryland and many states don’t permit employers to require a doctor’s note for absences of less than two or three consecutive shifts (three in Maryland). Regardless of your political position on paid sick leave, there is not denying that the right to be absent without penalty or verification is a recipe for abuse.

What’s an employer to do where it cannot provide critical services when employees are absent? Although there is no “magic bullet” employers can implement uniform procedures for any snow-day absence that might deter abuse.

Make the advance notice of absence on snow days a longer period (i.e. rather than 1 hour, make it 4 hours) if your sick leave law allows it. Maryland’s law recognizes that if an employee fails to follow the call in procedure AND the absence will cause a disruption, sick and safe leave (SSL) may be denied. Employees who dishonestly use leave aren’t always good planners, so they might incur some adverse consequence for calling out under this policy.

A couple of caveats, though. The burden of proving disruption likely will be yours, and Maryland, like most states with sick leave laws, excuses compliance with a call in procedure if it interferes with the ability of the employee to use the SSL.

Require employees to sign certifications whenever they take leave on snow days that identifies the reason that the leave was taken, who if anyone can verify that it was for the stated purpose and that the employee understands that if he/she is found to have used it for any other reason, he/she will be subject to discipline.

Require a meeting with HR to discuss the reason for any absence on a snow day. When people have to explain themselves, it may make them less likely to try to abuse leave.

Our fellow blogger and #WorklawNetwork colleague, #JeffNowak, offers some similar advice and more on deterring weather-related leave abuse under the Family and Medical Leave Act that we highly recommend. Check out his tips here.

]]>https://www.laboremploymentreport.com/2019/01/03/oh-the-weather-outside-is-frightful-i-think-i-need-a-sick-day/feed/0OSHA-Compliant Injury Reporting Policieshttps://www.laboremploymentreport.com/2018/10/04/osha-compliant-injury-reporting-policies/
https://www.laboremploymentreport.com/2018/10/04/osha-compliant-injury-reporting-policies/#respondThu, 04 Oct 2018 13:25:55 +0000https://www.laboremploymentreport.com/?p=3095Several months ago, OSHA proposed to rescind part of its revised workplace injury and illness reporting rule, which was originally issued in May 2016. The rule contained controversial electronic reporting requirements, which OSHA proposes to rescind for the most part (as we discussed in our July 2018 E-Update). As I mentioned in a recent blog post, OSHA Pre-empts CBA Drug-Testing Provisions?, this action caused me to revisit some older guidance on compliance with the surviving aspects of the rule – including the prohibition on discouraging employees from reporting workplace injuries or illnesses.

Many employers have policies that require “immediate” reporting and may even discipline employees for failure to comply with this requirement. Under the 2016 rule, this requirement is problematic. OSHA announced a settlement with U.S. Steel over this issue, which included a reporting policy that other employers can now use as a model for their own reporting procedures. This policy, with U.S. Steel-specific provisions slightly modified, is as follows:

OCCUPATIONAL ILLNESS AND INJURY REPORTING POLICY

It is important that all workplace injuries and illnesses are reported to management as soon as reasonably possible after they occur. Prompt reporting allows for prompt identification and correction of hazards and prompt medical attention for injuries. In some instances an employee may not immediately realize that s/he has been injured or made ill. In such circumstances, the employee must report the injury or illness as soon as reasonably possible after becoming aware of the injury or illness.

Therefore, the following policy applies to work‐related injury and illness reporting:

An employee who is at work when s/he becomes aware of an injury or illness must report it as soon as reasonably possible, but in no event later than leaving the workplace or 8 hours after becoming aware of the injury or illness, whichever is earlier. The report must be made to the employee’s supervisor.

An employee who is not at work when s/he becomes aware of an injury or illness must report it as soon as reasonably possible, but in no event later than 8 hours after becoming aware of the injury or illness. The employee must report the injury or illness by calling his/her supervisor and explaining that s/he is reporting a work‐related injury or illness.

No employee who complies with this policy will be disciplined for not promptly reporting an injury or illness.

Supervisors must not interfere with, or attempt to discourage, reporting under this policy.

]]>https://www.laboremploymentreport.com/2018/10/04/osha-compliant-injury-reporting-policies/feed/0Is Equal Pay becoming the new #MeToo?https://www.laboremploymentreport.com/2018/06/07/is-equal-pay-becoming-the-new-metoo/
https://www.laboremploymentreport.com/2018/06/07/is-equal-pay-becoming-the-new-metoo/#respondThu, 07 Jun 2018 19:08:09 +0000https://www.laboremploymentreport.com/?p=2940In the era of the #MeToo movement, it may be easy to overlook that equal pay is also having a moment. A huge moment. The federal Equal Pay Act (“EPA”) of 1963 requires “equal pay” for “equal work.” If the plaintiff shows a difference in pay for such work, the employer must prove the wage difference is due to a legitimate reason, which includes:

A seniority system

A merit system

A system based on quantity or quality of production

A differential based on any other factor than sex. Courts recognize type of or years of experience, education, and certifications.

Perhaps deciding that the federal EPA (or resulting jurisprudence and similar legislation in some states) is not sufficiently robust, in recent years, several states and jurisdictions have enacted legislation aimed to strengthen equal pay protections for workers. The specifics of the laws vary, but they generally prohibit requesting prior salary during the hiring process (e.g. “pay history bans” or “salary history bans”), under the rationale that setting current salary on past salary perpetuates the wage gap.

Last month, Connecticut became the latest state to pass a salary history ban. The law takes effect January 1, 2019, and provides a private right of action for violations that would permit plaintiffs to recover compensatory and punitive damages, plus attorneys’ fees and costs. Vermont also passed a law last month preventing prospective employers from requesting salary history. This law takes effect July 1, 2018. We also wrote in April about New Jersey’s expanded equal pay law, which included a new salary history ban.

These are only the most recent legislative developments—Massachusetts, New York City, Delaware, Oregon, California, and Philadelphia, have all passed similar legislation. While D.C. does not ban inquiries regarding past salary, it also beefed up its equal pay protections in April 2018.

Throughout this legislative flurry, the full Ninth Circuit Court of Appeals issued Rizo v. Yovino, in which it reversed an earlier decision in the same case by a panel of that same court, which had relied on 1982 precedent holding that prior salary was a legitimate reason for a pay differential. As we discussed in our April 2018 E-Update, the full Court has now held that, under the federal EPA, setting current salary on an employee’s past salary is not a legitimate factor other than sex that would justify a pay difference between a male and female employee.

Also last month, the U.S. Equal Employment Opportunity Commission—the federal agency tasked with investigating and enforcing EPA violations—announced a staggering $2.7 million settlement with a six-year consent decree against the University of Denver’s Sturm College of Law on behalf of seven female law professors. One allegation included a male professor was paid $75,000 more than a female colleague despite both being hired in the same year.

What does this all mean for employers? A couple of things—First, pay close attention to the laws as they develop in the jurisdictions where you operate. The proliferation of salary history bans mean that employers may need to revise their application forms, which frequently ask for salary in past jobs, and train their hiring managers to avoid asking about prior pay. In addition, many employers are voluntarily undertaking compensation reviews to ensure there are no disparities between similarly-qualified employees who perform “equal work” and making appropriate adjustments if needed.

]]>https://www.laboremploymentreport.com/2018/06/07/is-equal-pay-becoming-the-new-metoo/feed/0DOL Provides Clarification on FLSA Tip Pooling Amendmentshttps://www.laboremploymentreport.com/2018/04/09/dol-provides-clarification-on-flsa-tip-pooling-amendments/
https://www.laboremploymentreport.com/2018/04/09/dol-provides-clarification-on-flsa-tip-pooling-amendments/#respondMon, 09 Apr 2018 19:47:51 +0000https://www.laboremploymentreport.com/?p=2892On April 9, 2018, the Department of Labor announced the issuance of a Field Assistance Bulletin clarifying the recent amendments to the tip pooling provisions of the Fair Labor Standards Act, which were incorporated in the omnibus budget bill that was passed by Congress on March 21, 2018. Additionally (but without fanfare), the DOL revised its Fact Sheet #15: “Tipped Employees Under the Fair Labor Standards Act (FLSA).” The Bulletin clarifies that employers who pay the full minimum wage to tipped employees may require their participation in tip pools that include workers who are not “customarily and regularly” tipped – an issue that had been subject to significant controversy.

The FLSA provides that an employer may partially fulfill its minimum wage obligation to tipped employees with a “tip credit” based on tips received by the employees. The employer may also require tipped employees to participate in tip pools, by which the tips are shared among the participants. In order for the employer to take the tip credit, however, the tip pool must consist only of employees who are “customarily and regularly tipped.” If the employer does not take a tip credit, the FLSA was silent on whether the tip pool may also include employees who do not customarily receive tips.

In 2011, the Department of Labor issued a rule that expanded the tipped workers-only restriction for tip pools to all employers, whether or not they took a tip credit. The DOL’s regulation was the subject of considerable litigation, with federal appellate courts split on whether the DOL had the authority to issue the rule. The DOL then announced a proposed rescission of the rule, which would have allowed employers not taking the tip credit (1) to create tip pools that included non-tipped workers and (2) to come to “agreement” with tipped employees about the disposition and treatment of the tips (which really means that the employer would end up keeping some or all of the tips). But this announcement came under fire when it was discovered that the agency withheld an unfavorable economic analysis in its proposed rulemaking.

Reportedly in a deal with Secretary of Labor Acosta, Congress (in the context of the budget bill) amended the FLSA to state:

An employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not the employer takes a tip credit.

The FLSA’s penalty provisions were also amended accordingly. The actual parameters of this amendment, however, were unclear – until now.

According to the Field Assistance Bulletin, “employers who pay the full FLSA minimum wage are no longer prohibited from allowing employees who are not customarily and regularly tipped—such as cooks and dishwashers—to participate in tip pools.” The Bulletin specifies that managers and supervisors may not participate in such tip pools, however. And just to be clear, the DOL explains, in a footnote, that requiring tipped employees’ participation in a tip pool does not constitute the unlawful retention of tips by the employer, managers or supervisors.

The DOL’s Bulletin is quite helpful because the Fact Sheet actually does not address this situation, and its language seems to suggest the opposite. The Fact Sheet reiterates that tips are the property of the employee and may not be retained by the employer. The Fact Sheet also provides that tipped employees may be required to participate in a valid tip pooling arrangement that includes those who customarily and regularly receive tips, but not those who do not (such as dishwashers, cooks, chefs, and janitors). And then, in a new section on “Typical Problems” (or should that be “Tip-ical Problems”?), the DOL states:

Where a tipped employee is required to contribute to a tip pool that includes employees who do not customarily and regularly receive tips, the employee is owed the full $7.25 minimum wage and reimbursement of the amount of tips that were improperly utilized by the employer.

But since the Fact Sheet doesn’t address the type of tip pool that is the subject of the Field Assistance Bulletin, this statement is rather confusing. After all, it would seem that if a valid tip pool cannot include these non-tipped employees, isn’t that an improper utilization of tips by the employer? Fortunately, the Field Assistance Bulletin makes it clear that it’s not.

The DOL further states that it will be issuing new regulations in the future to incorporate these changes. Stay tuned.

]]>https://www.laboremploymentreport.com/2018/04/09/dol-provides-clarification-on-flsa-tip-pooling-amendments/feed/0More On Maryland Earned Sick and Safe Leave – Enforcement Delay and Collective Bargaining Agreementshttps://www.laboremploymentreport.com/2018/01/23/1-51/
https://www.laboremploymentreport.com/2018/01/23/1-51/#respondTue, 23 Jan 2018 20:11:59 +0000https://www.laboremploymentreport.com/?p=2824Today, January 23, 2018, Senator “Mac” Middleton filed a bill to postpone for 60 days the enforcement of Maryland’s new sick and safe leave (SSL) law by the state Commissioner of Labor and Industry. Given the law’s effective date of February 11, 2018, this means that enforcement would begin on April 12, 2018. We strongly note, however, that compliance – including the commencement of SSL accrual – is still required as of the February 11 effective date.

The bill, which we believe has a strong likelihood of passing, was filed as “emergency legislation.” This means that, as long as it is passed by 3/5 of the total members of each House, it will take effect immediately upon signature by the Governor. The bill has been expedited for hearing before the Senate Finance committee, of which Senator Middleton is chair, on Wednesday, January 24.

On another point of interest to unionized employers, we note that the Maryland Healthy Working Families Act contains a provision that provides relief for some employers with existing collective bargaining agreements (CBAs), for the term of the agreement. Specifically, the law states “That this Act. . . may not be applied or interpreted to have any effect on or application to any bona fide collective bargaining agreement entered into before June 1, 2017, for the duration of the contract term, excluding any extensions, options to extend, or renewals of the term of the original agreement.”

As originally intended, the language would have exempted all current CBAs upon the passage of the bill last General Assembly session. Due to Governor Hogan’s veto of the bill and the delay until the recent veto override by the General Assembly, there is now a gap – so that companies that entered into a CBA on or after June 1, 2017 are required to come into compliance with the law upon its effective date of February 11, 2018.

Unionized employers with pre-June 1, 2017 CBAs should be aware that compliance will be required immediately upon expiration of the current contract, regardless of any extensions or renewals of the contract.

In addition, we would like to note that the law contains an exception specific to construction industry employees who are covered by a bona fide CBA in which the requirements of the law are expressly waived in clear and unambiguous terms. (By the terms of the law, “construction employees” do not include janitors, cleaners, security officers, concierges, doorpersons, handypersons, or building superintendents – who are entitled to the benefits of the law). This waiver exception is not available to any other unionized employers, who will be required eventually to comply with the law – whether now or at the end of their contract term.

]]>https://www.laboremploymentreport.com/2018/01/23/1-51/feed/0The Federal Government Is Challenging State Legalization of Marijuana – What Does This Mean for Employers?https://www.laboremploymentreport.com/2018/01/04/the-federal-government-is-challenging-state-legalization-of-marijuana-what-does-this-mean-for-employers/
https://www.laboremploymentreport.com/2018/01/04/the-federal-government-is-challenging-state-legalization-of-marijuana-what-does-this-mean-for-employers/#respondThu, 04 Jan 2018 18:11:00 +0000https://www.laboremploymentreport.com/?p=2781Only days after California started selling recreational pot, which had been legalized under state law, CNN reported that Attorney General Jeff Sessions will announce that he is rescinding Obama-era guidance that had set forth a policy of federal non-interference with state legalization laws. This action further complicates an already confusing situation for employers struggling with how to navigate the battling federal and state laws on the workplace impact of marijuana use.

Marijuana use is illegal under the federal Controlled Substances Act. It is clear that federal contractors (who are subject to the Drug-Free Workplace Act) and employers with employees subject to the Department of Transportation regulations (which includes drug testing obligations) may terminate employees who test positive for marijuana use. It is also clear that, although the federal Americans with Disabilities Act requires employers to provide reasonable accommodations to disabled employees and applicants, permitting the medical use of marijuana is not a reasonable accommodation.

But 29 states and the District of Columbia have passed laws that permit the medical use of marijuana. And another 16 states have legalized the medical use of cannabis extracts. Many of these laws contain non-discrimination employment protections for valid medical marijuana users, and have raised the issue of whether employers must accommodate the use of medical marijuana under state disability laws.

Up until last year, the federal and state courts had consistently held that employers need not accommodate the medical use of marijuana – even off-duty – and could freely terminate any employee who tested positive for marijuana use. But a new trend has recently developed in the state courts. As we previously blogged in Do Employers Have to Provide Accommodations for Medical Marijuana Use?, a Massachusetts state court in Barbuto v. Advantage Sales and Marketing, LLC, permitted an employee to bring claims under the Massachusetts disability law for discrimination and failing to reasonably accommodate her off-duty medical marijuana use. The court specifically rejected the employer’s argument that the accommodation could not be reasonable since it violated federal law, noting that it was not the employer who would be in violation. Following that decision, two other courts have recognized similar claims under their states’ laws: Callaghan v. Darlington Fabrics Corp., (R.I. Super. Ct., 2017) and Noffsinger v. SSC Niantic Operating Co. LLC, (D. Conn., 2017). Based upon these decisions, employers would be required to consider whether it would need to provide an accommodation for medical marijuana use, instead of simply denying any such accommodation based on marijuana’s illegality under federal law. (By the way, the recreational use of marijuana is not subject to the same workplace protections.)

But Attorney General Sessions’ actions have now brought further uncertainty to the situation. Will state marijuana legalization laws be challenged by the federal government? Does that mean that employers will no longer have to worry about compliance with those state laws? It appears that Attorney General Sessions will take an aggressive stance with regard to these laws. At a press conference in November, he stated, “It’s my view that the use of marijuana is detrimental and we should not give encouragement in any way to it. And it represents a federal violation which is in the law and is subject to being enforced.” (In 2014, Congress passed the Rohrabacher-Bluemenauer Amendment, which prohibits the DOJ from using federal funds to interfere with the implementation of state medical marijuana laws – but that provision must be renewed annually and the Trump administration’s evident interest in cracking down on marijuana use may affect its future).

We must await further guidance from the Attorney General and the Department of Justice on the status of these state laws. But in the meantime, we know the following: Government contractors and those employers subject to DOT regulations can prohibit marijuana use by employees altogether. All employers can prohibit marijuana use or being under the influence of marijuana in the workplace. But whether employee’s off-duty use of medical marijuana must be permitted – that’s all pretty hazy right now.

]]>https://www.laboremploymentreport.com/2018/01/04/the-federal-government-is-challenging-state-legalization-of-marijuana-what-does-this-mean-for-employers/feed/0Lessons from Shake Shack: A Higher Minimum Wage = Loss of Jobshttps://www.laboremploymentreport.com/2017/10/05/1-49/
https://www.laboremploymentreport.com/2017/10/05/1-49/#respondThu, 05 Oct 2017 13:23:17 +0000http://www.laboremploymentreport.com/?p=2675This week, Shake Shack excitedly announced that it was implementing kiosk-only service at its newest NYC location, with an ostensible focus on digital innovation and improved customer experience. This means that, rather than interacting with a live cashier to place and pay for an order, the customer will use the kiosk to place an electronic order and use a credit card to pay for it. I don’t doubt that plenty of research has been done to establish that this will, in fact, increase efficiency, which is a good thing because, as I sadly know, those Shake Shack lines can be interminably long. I also am fine with the fact that I will no longer need to interact with cashiers who sometimes can be surly or incompetent (although, frankly, not usually at Shake Shack. I think their hiring practices and customer service training seem to be quite good.) But what this really means is that there are fewer jobs that will need to be performed by actual people. Who would otherwise get paid.

Interestingly, Eater.com noted in an article, “Upcoming East Village Shake Shack Nixes Human Cashiers,” that only a year ago, Shake Shack founder Danny Meyer told it, ““I know there is a temptation to replace human beings with robots or with iPads. We want you to leave you there just skipping with delight, and so far we haven’t found anything that does that better, either in terms of the food or the hospitality, than people.” So what has changed so dramatically in a year? Quite simply, increased minimum wages.

As you may know, the Service Employees International Union (SEIU) has been pushing the “Fight for $15” – a $15/hour minimum wage. (I had previously blogged that, ironically, the SEIU fails to pay its own “Fight for $15” staff $15/hour!) We are watching legislative initiatives all across the country to raise the minimum wage – in some cases to the desired $15/hour level. Many of these initiatives have been successful. The current minimum wage in NYC for large employers, like Shake Shack, is $11/hour, which jumps to $13/hour at the end of 2017, and then to $15/hour at the end of next year.

And now, in its press release, Shake Shack has also announced that, in conjunction with the implementation of digital kiosks, “Shake Shack will lead with a starting wage of $15 per hour to continue to be on the forefront of competitive wages and developing the leaders needed for growth.” Presumably this is a bump up from its already-above-minimum wage rate, which Eater.com had reported to be $12-13.50/hour back in 2016.

But what Shake Shack’s announcement doesn’t address is the fact that the practical consequence of its innovation is that it will need fewer employees. Making $15/hour. So, even though the point of the “Fight for $15” and an increased minimum wage is to bring more people out of poverty, here we have a situation in which fewer jobs are now available for those very people this initiative was intended to help.

]]>https://www.laboremploymentreport.com/2017/10/05/1-49/feed/0The Value of Labor Goes Beyond Wageshttps://www.laboremploymentreport.com/2017/09/21/1-48/
https://www.laboremploymentreport.com/2017/09/21/1-48/#respondThu, 21 Sep 2017 15:49:07 +0000http://www.laboremploymentreport.com/?p=2658Leaf raker, babysitter, waitress, retail salesperson, lawyer. I have had many jobs. Each has had value. Often, the pay and benefits did not match the value. When the value of the job exceeded the remuneration, I looked to find the next job.

I think about this as I observe the trend to demand that the dignity and value of work be rewarded appropriately by legislative mandate (i.e. a minimum wage increase). I do understand the motive. Not everyone has the opportunity to move up the ladder as I did. That takes not just intellectual ability and grit, but also the assistance of others, the most important of which often is not even financial assistance. It’s the supporter who says, “don’t give up, you can do it.” It’s having role models that show you that you can do it too.

I think about this as I look forward to the coming Maryland legislative session in January (our legislators convene from January to April of each year to “do the people’s business” and then return to their “day jobs” for the rest of the year). The first order of business will be a vote attempting to override the Governor’s veto last May of mandatory paid sick leave legislation. Then, the business of law making will move on to new efforts to enact legislative minimum employment standards, most principally, the “fight for $15” (i.e. the union-backed push for a $15/hour minimum wage).

The problem is that most employers don’t deny sick leave and a “living wage” to their employees because they are greedy, skimming the cream off the top for themselves and giving the workers the dregs. Small business owners usually are middle class people who sometimes don’t pay themselves because they have to pay their vendors and employees. When you tell a restaurant owner that, if these state laws are enacted, she will have to pay someone who is absent, pay his replacement, AND that the pay will be $15 per hour (less the tip credit) she will look at you in distress (much as my friend who owns a stand-alone Greek restaurant looked at me last Saturday night). “I’m already struggling after the wage hike to $9.25 in July, and my customers won’t pay more. I don’t know what I’ll do.” (That minimum wage is $11.50 an hour in Montgomery and Prince George’s counties, by the way.) That is the small employer’s dilemma.

Which brings me to my recent layover at the brand-new international terminal at Newark Airport. I was gob-smacked by the amazing choices of restaurants. I was also struck that they all had iPads at each counter seat and table. Diners place their orders on the iPad (cocktails and food) – which are immediately, efficiently, and accurately relayed to the kitchen – and a skeleton crew of food runners delivers the orders in the proper fashion (cocktails first, food later). You pay by swiping your credit card on the “square” affixed to the iPad. Then, your kids can play games on the iPad and you can go to the internet to read the latest news (don’t judge us – we usually talk at dinner, but not after nine hours on a plane). It was all efficient, but efficiency at the cost of many, many jobs. Each job, dignified, valuable as a matter of moral rightness, but priced out of existence when technology becomes the less costly choice.

That is why in January I, the Maryland Chamber of Commerce, and other associations of business owners will be opposing a veto override and will be “fighting against $15.” We understand that the value of work goes beyond the wage itself. However, the value of the opportunity for a job and the opportunity (hopefully) to move up the ladder is jeopardized when the cost of legislative mandates exceed the dollar-value of human labor.

]]>https://www.laboremploymentreport.com/2017/09/21/1-48/feed/0Do Employers Have to Provide Accommodations for Medical Marijuana Use?https://www.laboremploymentreport.com/2017/09/07/1-46/
https://www.laboremploymentreport.com/2017/09/07/1-46/#respondThu, 07 Sep 2017 19:45:52 +0000http://www.laboremploymentreport.com/?p=2643The consensus amongst employers in the recent past has been that, because federal law categorizes marijuana as an illegal substance, employers could take adverse action against individuals who tested positive for marijuana (refusing to hire, disciplining or terminating). In that same vein, because marijuana was illegal under federal law, the thought was that an employer had no obligation to provide accommodations to workplace policies, such as drug testing policies, to individuals who tested positive because of medical marijuana use. (Except in Nevada, because it is the only U.S. jurisdiction whose statute requires accommodations for medical marijuana users). However, a recent case, Barbuto v. Advantage Sales & Mktg., LLC, has seemingly caused the traditional line of thinking to go up in smoke.

In 2012, Massachusetts legalized the use of medical marijuana. In 2014, Plaintiff Cristina Barbuto received an offer of employment from Defendant Advantage Sales and Marketing (“ASM”) and was required to take a pre-employment drug test. Ms. Barbuto informed her future supervisor that she would test positive because of her medical marijuana use. Her supervisor told Ms. Barbuto that the medical use of marijuana “should not be a problem,” but he would investigate it further. After her first day of work (where she did not use marijuana in the workplace), however, Ms. Barbuto was discharged for testing positive for marijuana because, as HR told her, “[ASM] follow[s] federal law, not state law.”

Ms. Barbuto brought a disability discrimination claim against ASM. The Massachusetts Supreme Judicial Court ruled because her use of marijuana was legal under state law, Ms. Barbuto could bring state “handicap” discrimination claims against ASM. The court primarily relied on the state’s medical marijuana statute, which provides that individuals may not be “denied any right or privilege” on the basis of medical marijuana use. The court further noted that disabled employees and applicants have a statutory right to receive reasonable accommodations (unless they impose an undue burden on the employer). For this reason, rejecting an applicant solely because she uses medical marijuana is a denial of a reasonable accommodation.

The court then analyzed whether the use of medical marijuana off-duty and outside the employer’s premises presents an undue burden to the employer. The employer argued that medical marijuana cannot be a reasonable accommodation because it remains illegal under the federal Controlled Substances Act, which designates it as a Schedule I controlled substance. That designation means that the federal government has found marijuana “has no currently accepted medical use in treatment.” The court rejected ASM’s argument, because it went against the intent of the Massachusetts voters in permitting medical use of marijuana for some patients.

The court acknowledged, however, that the undue hardship argument might be available when the employee’s use of marijuana violates an employer’s contractual or statutory obligation, potentially jeopardizing the employer’s ability to operate its business. For example, the Drug Free Workplace Act states that federal government contractors must maintain drug free workplaces, and the U.S. Department of Transportation regulations prohibit DOT-covered safety-sensitive employees from using marijuana. In addition, the court stated that an employer might be able to demonstrate that an employee’s use of medical marijuana poses a safety risk to the public or to fellow employees.

The court also ruled that the employer should have engaged in the interactive process with the individual to determine whether there was any other accommodation that could have provided an effective accommodation.

Lessons for Employers: Employers in jurisdictions with medical marijuana laws on the books should look closely at the language in the statute to see if it prohibits employers from discriminating against medical marijuana users and/or provides employees with the right to sue for violation of their right to use medical marijuana. If so, then the reasonable accommodations requirements under state disability discrimination laws would suggest that the employer might need to engage in the interactive process to assess whether the off duty use of medical marijuana can be accommodated. Government contractors and employers governed by the Department of Transportation regulations, however, would likely be able to refuse any such accommodations since they are specifically subject to federal laws prohibiting the use of marijuana. Some states even have language in their medical marijuana statutes specifically providing that employers need not accommodate use if it would cause the employer to violate federal contract requirements or the DOT regulations.

While the accommodation obligations of employers has gotten a little hazy, one thing is still clear—none of the state statutes that legalize medical marijuana require an employer to permit the use of marijuana during work hours or on the work premises.